Competence is the ability of a potential witness to give evidence in a
court. If a person is not competent to give evidence, then they cannot give
evidence even if they or someone else wants them to.

The determination of a person’s competence has nothing to do with what
they might say if they do give evidence. It has to do with their status as a
person. (We shall see when we examine privilege that although a witness may
be competent, the particular evidence and how it was generated can lead to
its exclusion on the basis of rules that have to do with underlying public
policy reasons.)

Compellability refers to the power to force a potential witness to come
to court and give evidence. If a person is compellable, they are not only
competent but have no right to refuse to come to court and give evidence if
someone wants them to.

General Rule

We begin with the general rule which is that all witnesses are both
competent and compellable. Generally speaking everyone who has knowledge or
information relevant to an issue may come to court and give evidence. They
may also be forced (compelled) by a party in a dispute to come to court to
give evidence.

If the general rule was an absolute rule, we would not have to spend any
more time on this topic. However, there are exceptions and qualifications
and this is what makes the topic challenging and interesting.

The exceptions to the general rule about competence are today far fewer
than they were long ago. Case law and statute law has narrowed their scope.
However, it is useful to view the topic from a historical perspective to see
where the remaining exceptions to the general rule came from.

A historical perspective

The historical attitude that was mentioned in the first lecture is
responsible for many of the exceptions, some of which continue to exist.
What is this attitude? It is that anyone who has an interest in the outcome
of a trial is likely to manufacture or exaggerate the evidence because of
that interest. You just can’t trust someone with a stake in the outcome.
This attitude was reflected in the rule that person’s with an interest in
the outcome of a case were incompetent. In other words, even if they wanted
to testify or if someone else wanted them to, the rule prevented them from
doing so. Such a rule has the effect of rendering a witness incompetent.

The rule affected the plaintiff, and the defendant in a civil action and
the accused in a criminal action. Historically, none were allowed to appear
as a witness in a case in which they had an interest. In other words, they
were incompetent to give evidence.

This historical rule also extended to spouses of these parties. The
attitude included the notion that if your spouse has an interest and (and by
implication can’t be trusted to be truthful), then neither can you because
indirectly at least, you both have the same interest in the proceedings.

A second attitude that created exceptions to today’s general rule that
everyone is competent and compellable is that certain types of people
(regardless of whether they were parties or spouses of parties) could not be
trusted to give evidence.

The Oath

Historically, the oath has been a threshold to competence. Some people
could not give an oath. Therefore their evidence could not be trusted. One
type of person who fell within this description was a non Christian. Non
Christians could not swear on the bible. Therefore, it was considered that
their evidence could not be trusted. Therefore they were not competent
witnesses. We will examine this in more detail shortly.

This says something about how people thought about oaths and the effect
they were said to have on people’s obligation to tell the truth. This rule
has of course changed and oaths or affirmations (which have the same effect
as an oath) may be taken by anyone regardless of their religious beliefs.

Another type of person who was not competent (for much the same reason)
was a child. Children may not have an interest in the outcome of a case but
may be too young to understand an oath. Therefore they are incompetent.

Today, this rule is not absolute. In some circumstances, children can
give evidence, even though they have not been able to swear an oath or make
an affirmation because of lack of understanding. However, this is a
relatively recent statutory change. The common law prevented anyone who
could not understand the nature of an oath from giving evidence. Young
children were therefore nearly always incompetent (recall the Sparks case
which we considered in relation to judicial discretion).

.

Another category of people who are incompetent are those who, as a result
of some mental infirmity (organic, traumatic or self induced) are unable to
understand the nature of an oath and give rational testimony.

As mentioned above, the common law held that persons with an interest in
the outcome of proceedings could not be trusted. They were not tested on a
case by case or witness by witness basis. A blanket rule covered all of
them. This of course is something most of us would consider harsh and unjust
and it arguably did result in much injustice. We consider it very
fundamental that parties in a dispute, either civil or criminal have a
fundamental right to give evidence. It has been incorporated into what we
consider the essential principles of natural justice.

The old common law rule regarding the competence of parties was changed a
long time ago with respect to persons who are parties to civil proceedings.
Section 2 of the Evidence Act, 1851 effected this change. However, by
section 3 of the same act retained the existing law with respect to persons
charged with a criminal offence and the spouses of such persons. Neither was
competent or compellable for either side. It was sometime later (but still a
long time ago from our perspective) that the Criminal Evidence Act of 1898
effected a change in the common law that allowed accused persons in criminal
trials to give evidence.

Since 1898 therefore, the law has permitted plaintiffs and defendants
(parties) in civil matters and accused persons in criminal to testify. They
are competent, just like the rest of the population.

This means they can give evidence if they want tom (assuming they have
something relevant to say). The next question is can they be forced to give
evidence, even if they don’t want to? With respect to civil proceedings, the
answer is yes. This however, in practice does not really affect the conduct
of civil or criminal trials considerably.

There are at least three reasons why it makes little difference in
practice whether a party in a civil case is compellable. One is that there
would be few occasions when a plaintiff would want to call a defendant to
give evidence for the plaintiff. Similarly, if you are a defendant, it would
be very unlikely that you would want to call the plaintiff to give evidence
on your behalf. Why? The mere fact that you have a dispute that has found
its way into a courtroom suggests that the version of events the opposing
party would give would be contrary to the facts (or at least inconsistent
with the facts) you want to establish. It is highly likely that the evidence
of the opposing party would, at the very least be unhelpful.

Also, even if a party doesn’t call the other side as a witness, he or she
will still almost certainly have the opportunity to ask questions of the
opposing party. This would be in the form of cross examination of the other
side after they have finished giving evidence for themselves. As we shall
see, cross examination can be a more effective tool for asking questions of
persons whose interests are adverse to those you are trying to advance.

Thirdly, there is nothing to prevent the trier of fact from being asked
to draw an adverse inference from the failure of a party to testify in civil
proceedings. This means that in almost all civil cases, a party can expect
the opposing party to testify and there will be a chance for the other side
to cross examine.

Exceptions would exist where a party is incompetent. This would be the
case where the party is a young child who cannot understand an oath or who
is otherwise incompetent due to a mental infirmity. In that event, their
case would have to be advanced with evidence of witnesses other than the
party. This often happens in a negligence case where the injured party is a
young child.

In criminal proceedings, the situation is different. Although an accused
is competent to give evidence, he or she cannot be forced to give evidence
if he or she does not want to. In other words, an accused is not
compellable. This rule originated with the Criminal Evidence Act of 1898.
This is an absolute matter and runs through the common law. It applies in
all of the South Pacific jurisdictions.

However, simply being non-compellable is not totally satisfactory from
the point of view of the accused in criminal proceedings. If an accused
decided not to give evidence and a prosecutor, later in argument suggested
to the trier of fact that because he didn’t testify, he must be guilty,
(i.e. that an adverse inference should be drawn from the failure to give
evidence) the right would lose much of its force and effect. You can easily
imagine a case where this argument would be made. For instance, think back
to the hypotheticals we have used in tutorials. If Jacob (the man who was
alleged to have stolen the whiskey) sat through his trial and did not take
the stand to explain his innocence, the prosecutor (in the absence of a rule
preventing it) would almost certainly want to point this failure to testify
out to the trier of fact and ask that an adverse inference be drawn.

Therefore, the law has included a companion rule together with that of
non compellability of an accused. The law prevents the prosecution from
making an adverse comment about the failure of the accused to give evidence.
This is slightly different from saying that an adverse inference should not
be drawn from the accused’s failure to give evidence.

This rule allows an accused or his or her counsel, at the end of the
prosecution’s case to argue that the prosecution has failed to prove the
case beyond a reasonable doubt. There is no need to explain why the accused
did not testify. The prosecution is not allowed to suggest to the trier of
fact that anyone in the position of the accused if he or she was innocent
would certainly want to explain their innocence to the court – if the
accused was indeed innocent. The obvious inference about the accused’s
innocence.

If a prosecutor could make this sort of argument, then an accused
(especially one who really was not guilty) wouldn’t be much further ahead by
exercising his or her status as a non compellable witness.

The 1898 legislation prevents any adverse inference from being taken from
the accused’s failure to testify. Without it, the right to silence and the
right to be free from self incrimination would lose much of their force.
With it, the rights are made effective.

Criminal Evidence Act 1898

“s. 1 Every person charged with an offence and the wife or husband,
as the case my be, of the person so charged, shall be a competent
witness for the defence at every stage of the proceedings, whether the
person so charged is charged solely or jointly with any other person.
Provided as follows: -

A person so charged shall not be called as a witness in pursuance of
this Act except upon his own application:

The failure of any person charged with an offence, or of the wife or
husband, as the case may be, of the person so charged, to give evidence
shall not be made the subject of any comment by the prosecution:

The wife or husband of the person charged shall not, save as in this
Act mentioned, be called as a witness in pursuance of this Act except
upon the application of the person so charged:”

An accused cannot decide to give evidence and then refuse to answer a
question because it might tend to incriminate him or her. In other words, an
accused can’t have it both ways. Once an accused takes the stand, he or she
is treated like any other witness. The accused is subject to cross
examination and must answer the proper questions that are put by the
prosecutor. Once an accused decides to give evidence, he or she cannot be
selective about what evidence to give.

When an accused person gives evidence, the rules of evidence apply to the
specific evidence that he or she can give, just the same as they affect the
evidence of other witnesses.

Remember that the common law did not change. It is arguable that if all
the statutes affecting evidence were repealed, that we would revert to the
common law position where parties are not able to give evidence. It is
legislation that has brought about the present situation whereby an accused
is competent but not compellable.

We have already referred to the UK legislation that accomplishes this
change from the common law.

Now, let us look at Pacific legislation that continues to give effect to
this.

Fiji section 145 of the Criminal Procedure Code

Solomon Islands section 141 of the Criminal Procedure Code

Tonga section 121 of the Evidence Act

Vanuatu section 89 of the Criminal Procedure Code.

Samoa section 15 of the Evidence Act

Kiribati section 141 of the Criminal Procedure Code

Cook Islands section 6 of the Evidence Act

Most of these sections are almost exact copies of the legislation of
1898.

Marshall Islands– Constitution section 4(7) which states:

No person shall be compelled in any criminal case to be a witness
against himself, or against his spouse, parent child or sibling, or to
give testimonial evidence against any such person whenever that evidence
might directly or indirectly be used to obtain such person's criminal
conviction.

In the UK itself, the law has recently changed in relation to the
compellability of an accused and the matter of what inferences may be drawn
from a failure to give evidence. An adverse inference can be drawn in some
circumstances. This is a significant departure form the pre-existing law.
You do not need to know about these instances because the changes are too
recent to be adopted in any South Pacific jurisdiction. This means that
parts of the Murphy text are irrelevant to this course.

Note that in Fiji, the Law Reform Commission is considering changes to
the law of criminal evidence and changes are likely to be forthcoming there.
It is not yet known whether those changes will take the law in the direction
that it has been taken in the UK.

Also remember that although the equivalent statutory provisions to the
1898 Criminal Evidence Act make an accused non compellable and prevent a
prosecutor asking that an adverse inference be drawn when he or she does not
give evidence, there will be occasions when the nature of the charge and the
nature of an accused’s defence will make it practically necessary for the
accused to give evidence. However, this would be evidence for the defence
and not for the prosecution.

In criminal matters, people can be charged together. What we know from
what has just been discussed is that an accused cannot be compelled to give
evidence in relation to him or herself. Another question arises as to
whether an accused is competent to give evidence for or against a co-accused
and whether an accused is compellable to give evidence for or against a
co-accused.

A co-accused is a person who is charged with the same offence or offences
and is being tried on the same information or indictment as another accused.

An accused is no more compellable in relation to a co-accused than in
relation to the charges he or she faces. This means that an accused cannot
be called by either the prosecutor or a co-accused to give evidence for or
against a co-accused.

However, an accused is competent to give evidence. If the accused does
give evidence (for or against a co-accused or on his or her own behalf) he
or she can be cross examined by counsel for the co-accused just the same as
he or she can be cross examined by the prosecutor. Cross examination on
behalf of a co-accused could attempt to point all the blame on the accused
or make the co-accused look good. But if the accused has decided to give
evidence, he or she cannot refuse to answer these questions.

An accomplice is not a co-accused if he or she is tried separately,
either in the past, in another trial or in pending proceedings where no
charge has yet been laid. Sometimes persons who begin as co-accused, charged
on the same information or indictment may stop being co-accused’s part way
through a criminal proceeding.

One way that proceedings might be separated is where although jointly
charged, an accused pleaded guilty. He is no longer on trial. This is
because he is no longer an accused. Similarly, where the prosecution drops a
charge against one co-accused but proceeds against another, the first is no
longer a co-accused although that is how the started out.

When the accused is no longer a co-accused, he or she becomes competent
or compellable just like an ordinary witness.

If an accused is tried on a separate indictment from that of an
accomplice, he or she is not a co-accused. When an accused was but is no
longer a co-accused, there are special rules of practice that apply. These
rules of practice are not rules of evidence.

For instance, if A is charged with an offence along with B and the
prosecutor says to A, “we will drop the charges against you if you will give
evidence against B” and A agrees, then, once the charges are dropped, then A
is no longer an accused. The prosecutor can call A just like any other
witness.

Another similar instance is where the prosecutor says to A, “If you plead
guilty (it might be to the offence charged or a lesser included offence),
then we will go easily on you in sentence if you agree to give evidence
against B.” A agrees.

Section 16 of the Samoa Evidence Act provides a statutory basis for the
above discussion. It provides that a former co-accused is both competent and
compellable at the instance of the prosecution.

There are conflicting interests that govern the practice of compelling a
former co-accused to give evidence for the prosecution. On the one hand
there is the need to eliminate any possibility or even perception that the
evidence of a co-accused is being given in exchange for (or even in hope of)
a more lenient sentence. This would be seen as improper in most
jurisdictions. Also, it would be an effective basis for cross examination on
the issue of credibility. Nothing prevents a defence lawyer from cross
examining a former co-accused about a favourable arrangement that he or she
might have had with the prosecution. This goes to the issue of credibility.
The solution to the credibility issue is to this is to make sure that
sentence is passed on a co-accused before he or she testifies for the
prosecution against a co-accused.

On the other hand there is the need to sentence all co-accused in as
consistent a way as possible. This requires that all co-accused be sentenced
at the same time and that sentence of the one who pleads or is found guilty
should wait until all co-accused have been convicted (or acquitted). In this
way, subsequent evidence by a co-accused that distorts the picture that
emerges on an earlier guilty plea can be taken into account.

Different jurisdictions might resolve these differing interests in
different ways. These are rules of practice that are tangential to the
issues of competence and compellability that we are mainly concerned with.

Although a spouse remains competent and compellable in civil cases
(subject to spousal privilege – which relates to what evidence a spouse may
be forced to give as opposed to whether the spouse may be forced to be a
witness in the first place), in a criminal case, a spouse, generally
speaking is competent and compellable as a witness for the accused but not
for the prosecution. A spouse is not compellable at the instance of the
prosecution. In other words, a prosecutor cannot force the spouse of the
accused to testify against him or her. See the sections referred to above
which provide for this.

This means that if a person is charged they can ask their spouse to
testify on their behalf and if the spouse refuses, the person can subpoena
them and force them to testify. However, unless the accused agrees, the
prosecution cannot call the accused’s spouse.

This is an appeal of a criminal conviction for robbery of a taxi driver.
Mr. Gates (as he then was) represented the appellant. He argued two main
points on appeal. the competence and compellability of the woman alleged to
be the wife of the appellant. It was argued that the Magistrate should have
inquired and stopped the witness.

The second issue was identification of the accused. It was argued that,
with no line up, the identification of the appellant by a taxi driver was a
fleeting glance only and insufficient for the court to conclude beyond a
reasonable doubt that he was the person who committed the offence.

Both grounds of appeal were carefully considered but in the end rejected.
The first because the spouse’s evidence was duplicated by other admissible
evidence. The second because the facts satisfied the court (both of them)
that the identification was a good one. The following is an extract from the
case.

1. INADMISSIBILITY OF SPOUSE'S EVIDENCE

“Mr. Gates for the
Appellant complained that the learned Magistrate, being put upon notice,
as it were, from the material in front of him that there was at least a
claim by the Appellant that Ateca McGoon was his wife, should have
intervened to stop her giving evidence, since she was neither a
competent nor compellable witness against her husband in law, in this
class of case.

The State conceded that if she was the Appellant's wife, she was in
law neither competent nor compellable, because these types of
proceedings were not such that she could be called in them against the
Appellant.

Strangely, and unsatisfactorily from the point of view of this Court,
neither party was in a position to inform the Court whether Ateca McGoon
was in fact lawfully married to the Appellant. A simple search of the
register of marriages would have ascertained this. S.320 of the Criminal
Procedure Code provides that necessary additional evidence may be given
on appeal.

Mr. Gates submitted it had been, and still was, for the prosecution
to qualify their witness. But he said her evidence did not amount to
much anyway. The State pointed out that any evidence she gave was
replicated in other parts of the evidence. The Appellant admitted
everything that was in her evidence, the State said, so no undue
advantage was obtained, if it was inadmissible.

The immunity from giving evidence of course did not operate to
prevent police interviewing McGoon and obtaining quite profitable
information from her. Also the obtaining from her of exhibits that might
help to convict the Appellant.”

Remember that once a spouse does decide to testify, he or she is open to
cross examination by both the prosecutor and if there is any co-accused, by
the lawyer for the co-accused.

However, there is still the privilege relating to communications between
spouses during marriage. An example of the difference might help. If a
spouse saw a gun in her husband’s brief case, this is not privileged. It is
not a communication during marriage. If a spouse is told by his spouse that
there is a gun in her briefcase, this is a communication and is privileged.
If the spouse was asked in court if her husband told her anything about the
whereabouts of the gun, she would probably refuse to answer (subject to a
judge’s ruling) on the basis that the communications during marriage between
herself and her husband are privileged. We will examine privilege in greater
detail later.

However, there are certain types of offences where spouses are both
competent and compellable at the instance of a prosecutor. They tend to be
where the spouse, family members or children are victims of the offence that
the accused is charged with. Also, in charges of bigamy, the spouse can be
called to testify. These are statutory exceptions to the general statutory
rule that spouses are not compellable.

See the sections of the statutes referred to above and other related
sections in the legislation (see section 145 of the Fiji Criminal Procedure
Code and similar sections in the other legislation.).

It does not matter whether the matter about which evidence is sought
occurred outside the time the spouses were married or even if they were
married after the alleged offence solely to protect the wife from giving
evidence. A spouse is not compellable as a prosecution witness regardless of
when the marriage took place. At common law, former spouses remain non
compellable in relation to evidence of events taking place during the
marriage. (page 430 Murphy).

The law does not recognize common law relationships (de facto marriages)
or same sex relationships. In view of the new Constitution in Fiji, one
might expect that, eventually a submission will be made in a case to the
effect that this is discriminatory and therefore unconstitutional.

What are the conflicting public policy reasons for the rules relating to
the competence and compellability of spouses? If you were drafting
legislation dealing with this issue, what would you include?

See section 138 of the Fiji Criminal Procedure Code.

Should a spouse be compellable at the instance of the prosecution in
cases where the accused is charged with an assault against the wife or a
child?

The wording of the statutes that govern this area however, refer only to
spouse when dealing with competence and compellability. They do not apply to
former spouses. Therefore, a spouse who has been divorced before trial is
competent and compellable for the prosecution. One may ask whether this
serves any valid policy objective. It should be acknowledged that this is an
area where there is some uncertainty even among the text writers. In any
case in the Pacific where it is anticipated that a spouse of an accused or a
former spouse is likely to be called as a prosecution witness, some care
should be taken to formulate a position based on authorities prior to the
trial.

The competence of children is related to their perceived ability to
understand the nature of an oath. The nature of an oath, as we shall see,
has to do with understanding that there is a divine sanction for not telling
the truth after calling God as your witness when you swear to tell the
truth.

If a child can understand an oath, and is sworn, then the child is
competent. Once this is determined in the affirmative, then a child is
treated as any other witness. The key to understanding is believing that
there is divine retribution for not telling the truth.

The age at which children are able to understand an oath is not fixed.
Murphy refers to old cases where children as young as 5 or 7 have been sworn
and have given evidence. Cases have been adjourned for children to get some
religious education so that they will be able to be sworn. In other words,
steps have been taken to make incompetent children competent. (One might
well ask whether this amounts to manipulation and whether it does not
require a fiction to support it.)

The determination of whether a child is able to understand an oath is
made by a judge after asking the child questions about the meaning of
telling the truth. Therefore it is unlike a normal voir dire. This may be
contrasted to the determination of competence of other adults which is a
matter about which counsel have a right to ask questions.

The determination of the competence of children takes place in the
absence of the jury or assessors if there are any. In this sense, it is like
a voir dire. In some cases, a judge will interview a child in the privacy of
his or her chambers.

In most jurisdictions, there are Statutory provisions which allow the
giving of evidence by children who do not understand the nature of an oath
but have the ability to communicate their evidence. See sections of the
legislation referred to above and related sections.

In cases where a child is able to give evidence without being sworn or
affirmed, the child’s evidence normally has less weight than that of an
ordinary witness. An accused cannot be convicted without evidence to
corroborate that given by the child. (again see legislation – for example
section 83 of the Criminal Procedure Code of Vanuatu or section 66 of the
Samoan Criminal Procedure Code.)

Section 10 of the Oaths, Affidavits and Affirmation Act of Samoa provides
for children under 12 (with no apparent minimum age to make a promise to
tell the truth) and thereby, their evidence is given the same status as if
it had been given under oath. Therefore the unsworn evidence of a child may
be just as powerful as sworn evidence.

“s. 10 All witnesses who are or appear to be under 12 years may be
examined without oath but any such witness shall be required, before being
examined, to make the following declaration, “I promise to speak the truth,
the whole truth and nothing but the truth” or words to that effect; and such
declaration shall be of the same force and effect as if the witness had
taken an oath.”

Presumably this would require a judge to inquire whether a child could
understand the meaning of giving such a promise.

Other persons who are competent but who are not compellable include
members of the diplomatic corps. This is not a common law matter but most
countries have some legislation that covers this.

The head of state may not be compellable. In the UK, the Queen cannot be
compelled to give evidence and in Tonga, the Evidence Act specifically
provides that the King is not a compellable witness.

It has already been mentioned that except for some children in criminal
cases, people who are unable to understand the nature of an oath or
affirmation are not competent and therefore cannot be compelled to give
evidence.

If the competence of a witness (other than a child whose understanding of
an oath is a matter for the judge to determine) is challenged, the burden is
on the party who is calling him or her. This is done in the absence of the
jury. (This is not absolute and there is some authority to suggest that it
ought to be done with the jury present. This way, if there is competence,
then evidence elicited during the voir dire can be used to weigh the
evidence.) It is conducted like a voir dire. The main issues of the trial
are set aside and the only issue becomes the competence of the witness.
Normally questions are put to the potential witness (if appropriate) or
perhaps to a medical or psychiatric expert. This is a matter of law for the
judge as the one who decides law. It is not a matter for the trier of fact.
Only if competence is established and evidence is given does the evidence
become something for the trier of fact.

The standard of proof is unclear although there is authority to the
effect that it is beyond a reasonable doubt where the prosecution has to
prove competence in a criminal case. Murphy agrees with this and further
asserts that in all other cases, the civil standard of proof applies. (page 438)

A finding about competence does not affect the competence of a witness
for all time. A witness might be found incompetent on one occasion and yet,
later, be lucid and be found competent.

The following Fiji case relates to the question of when the judge has a
duty to specifically qualify a witness as competent. It is an appeal where
the competence of a child to take an oath is raised. The appeal court found
that, not only is a 15 year old girl competent to take an oath but there is
nothing to suggest that the trial judge should have made a specific inquiry
into the issue prior to her taking one. The following is an excerpt of the
case. (This case also deals with recent complaint and corroboration which we
will consider later in the course.)

“In his argument on the first ground, counsel for the appellant contended
that as the complainant was under 15 years of age when she gave evidence,
there should have been some enquiry as to her understanding of the nature of
an oath. Counsel referred the Court to the proviso to Section 134 of the
Criminal Procedure Code of the British Solomon Islands Protectorate, the
relevant portions of which read as under:

“Provided that the court may at any
time, if it thinks it just and expedient ..... take without oath the
evidence of any person . . . who by reason of immature age or want of
religious belief would not, in the opinion of the court, be admitted to
give evidence on oath.

It is a well-established law that an infant of any age may be sworn as
a witness in any criminal case provided that such infant appears
sufficiently to understand the nature and moral obligation of an oath;
Archbold, 36th Edition, Para. 1287. It is a matter for the discretion of
the judge; and in our view there is nothing on the face of it to show that
the learned trial judge in the present case should not have exercised his
discretion in the direction of permitting a girl of nearly 15 years of age
to be sworn as a witness, without making previous enquiry as to her
understanding of the nature of an oath.”

There are statutory provisions in the legislation of all countries in the
region that deals with what are referred to as refractory witnesses.
(refractory – “stubbornly disobedient”)

See section 137 of the Criminal Procedure Code of Fiji.

In effect what a court does (and in most cases only has to threaten to
do) is to adjourn the case for a period not exceeding 8 days with the
witness remanded to custody. This is repeated as often as is necessary to
effect the compliance of a compellable witness.

There have been celebrated cases where journalists who have been called
to give evidence have refused to disclose the confidential sources of
stories they have written and have been remanded in custody. It becomes a
test of wills between the journalist (who usually appeals to a code of
journalistic ethics) and the prosecutor. If the seriousness of the charge or
the importance of the witness’s evidence is outweighed by the expense,
inconvenience and other logistical factors, a witness who can handle being
locked up (and perhaps gaining favourable press in the process) can effect a
stay of proceedings.

On other occasions, a prisoner who is brought to court to testify will
refuse to answer questions or lying, say that he or she “forgets”. There are
codes of behaviour and allegiance among prisoners that are sometimes
stronger than the sanctions of justice. After all, if a person is already in
custody, it is unlikely that been confined in custody for 8 days would have
much impact.

As mentioned above, the main criteria that separates competent from
incompetent witnesses is the ability to understand and give an oath or
affirmation.

The historical view has been, if you can give an oath you can testify, if
you can’t give an oath you can’t.

An oath was, in its original sense, something only Christians could do.
Therefore, originally, only Christians were competent witnesses. You can
easily imagine cases where injustice resulted from this rule, especially
where it worked in conjunction with the rule that parties could not testify.
However, this changed and a belief in a supreme ruler of the universe became
the criterion, thus permitting an oath to be taken by non Christians of
other faiths who believed in God.

However, this development did not allow for evidence to be given by
atheists who did not believe in the existence of a supreme ruler of the
universe. In 1869, statutory provision was made to allow atheists to affirm
rather than to swear an oath. An affirmation is a solemn promise to tell the
truth but it does not invoke God.

Oaths are generally straightforward, routine matters, administered
without very much formality. A Christian takes the bible in his or her right
hand and repeats the following words or words to the same effect.

“I swear by almighty God that the evidence which I shall give shall be
the truth the whole truth and nothing but the truth.”

In most jurisdictions the oath is now put in the form of a question. “Do
you swear that the evidence that you shall give touching the matters in
question shall be the truth, the whole truth and nothing but the truth, so
help you God?” The witness takes the oath by answering, “yes”.

Different religions prescribe different observances or rituals that go
along with making an oath. Most involve holding in the right hand a holy
book. Some involve kissing the book. Phipson gives a description of some of
the more colourful rituals. If a student is aware of any particular
practices in the South Pacific, I would be grateful if you would let me
know.

What is it about an oath that is supposed to compel people to tell the
truth? Historically, it was the belief in a divine sanction involved in
breaking an oath that was felt to be an inducement to tell the truth. This
is why those who could not give an oath could not testify. They could not be
said to be under a belief that God would punish them for telling a lie.

This is still a strong inducement for some people to tell the truth. Many
religious persons would agree that telling a lie after swearing to God that
you will tell the truth will result in some divine punishment.

In the following case excerpt, a Solomon Islands judge voices frustration
at the way that some witnesses treat an oath. (We have already examined the
following case in relation to credibility and the role of the finder of
facts. It also deals with burden of proof and character evidence.)

“I feel compelled at this juncture to express my deep
displeasure, at the way the Oath that a witness takes to tell the
truth, the whole truth in court, and that includes answering
questions, has been blatantly abused and taken for granted by
witnesses who come before this Honourable Court. Taking the oath is a
solemn act in itself, and directly invokes the Authority of God
Almighty, recognising His Omnipresence and Omniscience, as the Witness
to the testimony of the witness. All witnesses therefore who take the
oath must take it seriously, and seek actively at all times, to speak
the truth according to the best of their ability, knowledge and
understanding, instead of deliberately lying in court. I raise this
concern now because it is clear to me that there are some witnesses
who do not appreciate the value and significance of the oath and the
assistance that it provides to the Courts in the due administration of
justice. I think we should remind ourselves, not to use the oath as a
mere human tool which can be abused at will but also a solemn act, in
which we make ourselves accountable not only to men, but also to God
Almighty. It is my hope that we will have fewer cases where witnesses
come to these courts and deliberately lie through their teeth.”

However, there are other reasons for telling the truth after being sworn
or giving a solemn affirmation. One has to do with the conscience that some
people feel to tell the truth even without a belief in divine intervention.
Certainly, an affirmation, if it binds the conscience in any manner, does so
on this basis. It is not that God will punish a person, it is that the
person’s conscience, apart from God will bother or “punish” the person if he
or she does not tell the truth.

However, there is another, perhaps even stronger reason for telling the
truth and that does not have to do with divine punishment or human
conscience but rather the fear of being caught telling a lie and the
possibility of being charged and convicted with perjury. The Penal Codes or
other legislation in every jurisdiction of the Pacific would include the
offence of perjury. It is a serious indictable offence. Telling a lie is
likely to result in very rigorous cross examination at the very least and
this increases the chances that a lie will be revealed.

It would be naïve however to assert that these measures are sufficient to
prevent all witnesses from lying in court or to uncover and punish those who
do.

The law prevents people from getting around their obligation to tell the
truth by taking a false oath; that is, taking an oath that is not binding.
For instance, a non Christian might deliberately take an oath on the bible
thinking that this will result in him or her not really being sworn to tell
the truth and therefore not really obliged to tell the truth and to be able
to lie with impunity.

The law has not allowed this course to be taken as a means of defence to
a charge of perjury. It is the taking of an oath and not the belief in it
that triggers the obligation and is the basis for the offence of perjury.
People cannot say, after taking an oath, “I didn’t mean it” or “I didn’t
believe it” or “I don’t really believe in God”. The law will not permit them
to use this to evade the obligation to tell the truth or the consequences of
not doing so.

Each jurisdiction has some legislation known as the Oaths Act, The Oaths
and Affirmations Act or the Oaths, Affirmations and Declarations Act. You
should be familiar with the legislation in effect in your jurisdiction and
to see the specific provisions relating to oaths and affirmations.

If you have any comments, suggestions or
difficulties with using this web site please email
Robynne Blake,
Internet Project Manager, The School
of Law, The University of the South Pacific or fax: (678) 27785